Geneva 2018 and its aftermath

Sri Lanka’s Foreign Minister Tilak Marapana opened his address to the UN Human Rights Council at the 37th Secession by referring to a section from President Sirisena’s 100 Day Programme; he stress, inter alia: “… the government’s firm commitment to the advancement of reconciliation, the rule of law, good governance, human rights, justice, equality, and dignity for all our citizens …” He concluded his address, stating: “Sri Lanka’s judiciary and law enforcement mechanisms are fully capable and committed to the processes of advancing justice to all concerned. It has a long history of integrity and professionalism and since January 2015, steps have been taken to further strengthen its independence. And may I add, Mr. President that all reconciliation mechanisms will be implemented in accordance with our Constitution”.

In view of the fact that the Sri Lanka government had co-sponsored UNHRC Resolution 30/1 in 2015, and that in 2018 it states that “all reconciliation mechanisms will be implemented in accordance with our constitution”, is a paradigm shift, the consequences of which reflect a bold and dignified stand that hitherto Sri Lanka has not taken much to the disappointment of the overwhelming majority of the Sri Lankan nation. Although warnings were given earlier to the effect that the implementation of certain provisions in the resolution would entail revisions to the constitution, no attempt was made by this government to say so directly at the UN Human Rights Council sessions until 2018. What it means is that either the constitution has to be revised to accommodate the provisions of Resolution 30/1, or in the alternative the resolution has to be revised in a manner that does not contradict Sri Lanka’s constitution.

ESTABLISHING the CONTEXT

Not only is Sri Lanka required to address issues relating to UNHRC Resolution 30/1 within the provisions of its constitution, but it is also required as a signatory to abide by provisions contained in international instruments such as the four Geneva Conventions. In addition, since Article 13 (6) para 2 of Sri Lanka’s constitution also recognizes “general principles of law recognized by the community of nations”, Sri Lanka is obligated to abide by provisions in international instruments irrespective of whether Sri Lanka is a signatory or not to such instruments. Therefore, the context in which UNHRC Resolution 30/1 should be evaluated should be within the framework of both the Sri Lanka constitution and laws recognized by the community of nations.

It therefore follows that Sri Lanka is constitutionally entitled to address all issues relating to Resolution 30/1 in terms of Common Article 3 of the four Geneva Conventions of 1949, and more specifically to provisions of Protocol Additional to the Geneva Conventions of August 1949, relating to the protection of victims of non-international armed conflict of June 1977, since it is accepted by the community of nations as an integral part of customary law.

Paragraphs 182 and 183 of the OISL Report by the Office of the UN High Commission confirm the approach cited above.

Paragraph 182 states: “Article 3 common to the four Geneva Conventions relating to conflicts not of an international character is applicable to the situation in Sri Lanka, with all parties to the conflict being bound to respect guarantees pertaining to the treatment of civilians and persons hors de combat contained therein….” (N.B. “all parties to the conflict”).

Paragraph 183 states: “In addition, the Government and armed groups that are parties to the conflict are bound alike by the relevant rules of customary international law applicable to non-international armed conflict”.

In view of the background established above, the material presented below is an evaluation of the provisions of Resolution 30/1in terms of provisions in “PROTOCOL ADDITIONAL TO THE GENEVA CONVENTION OF 12 AUGUST 1949, AND RELATING TO THE PROTECTION OF VICTIMS OF NON-INTERNATIONAL ARMED CONFLICTS (PROTOCOL II) (with Final Act of the Diplomatic Conference on the reaffirmation and development of international humanitarian law applicable in armed conflict dated 10 June 1977 and resolutions adopted at the fourth session). Adopted at Geneva on 8 June 1977.

PART 1. SCOPE OF THE PROTOCOL

Article 1: MATERIAL FIELD OF APPLICATION. “This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of August 12 1949 … shall apply to all armed conflicts…which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol”.

COMMENT: Since the LTTE operated as an armed group under responsible command and exercised control over a part of Sri Lanka’s territory to the extent that such territories were designated “LTTE controlled areas” in the Cease Fire Agreement facilitated by Norway, from which it carried sustained and concerted military operations, the conflict in Sri Lanka should justifiably be designated as a non-international “ARMED CONFLICT”.

Article 3: NON- INTERVENTION. 1. Nothing in this Protocol shall be invoked for the purpose of affecting the sovereignty of a State or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State”.

2. Nothing in this Protocol shall be invoked as a justification for intervening, directly or indirectly, for any reason whatever, in the armed conflict or in the internal or external affairs of the High Contracting Party in the territory of which that conflict occurs”.

COMMENT: The following examples illustrate the degree of direct and indirect intervention in the internal affairs relating to issues associated with the armed conflict in Sri Lanka :

(b) “…Sri Lanka to establish a judicial mechanism with special counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law, as applicable…”

(c) “…Sri Lanka to introduce effective security sector reforms…”

(d) “…Sri Lanka to `accelerate the return of land…in particular the ending of military involvement in civilian activities…”

(e) “…Sri Lanka to review the Public Security Ordinance…”

(f) “…Sri Lanka to sign and ratify the International Convention for the Protection of All Persons from Enforced Disappearances…”

(g) “…Sri Lanka to establish an Office of Missing Persons and an office for reparations…”.

(h) ‘…to fulfill its commitment on the devolution of political authority and to ensure that all Provincial Councils are able to operate effectively…”.

PART II. HUMANE TREATMENT

Article 4. FUNDAMENTAL GUARANTEES. Article 4 (2) lists all the violations that are prohibited under international humanitarian law. They range from violence to life; to collective punishment; to taking of hostages; to acts of terrorism; outrages upon personal dignity, rape, enforced prostitution; to slavery and slave trade; to pillage.

Article 4 (3) deals with issues relating to children.

Article 5. PERSONS WHOSE LIBERTY HAS BEEN RESTRICTED. 1. In addition to the provisions of Article 4, the following provisions shall be respected as a minimum with regard to persons deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained:

2 (a) “The prosecutor shall provide for an accused to be informed without delay of the particulars of the alleged offence against him and shall afford the accused before and during his trial all necessary rights and means of defence”;

2 (b) “No one shall be convicted of an offence except on the basis of individual penal responsibility”;

2 (d) “Anyone charged with an offence is presumed innocent until proved guilty according to law”;

2 (e) “Anyone charged with an offence shall have the right to be tried in his presence;

2 (f) “no one shall be compelled to testify against himself or to confess guilt;

COMMENT. In view of the provisions cited above there is absolutely no need for a judicial mechanism with the participation of foreign judges, prosecutors etc. etc as called in paragraph 6 of Resolution 30/1, because the procedures cited above are not only known to the legal institutions functioning in Sri Lanka but also are familiar with them as stated by the Foreign Minister during his address. Furthermore, the fact that no one guilty of any of the violations listed in Article 4 of Additional Protocol II has been informed “without delay”, coupled with the fact that no one has thus far been charged of any specific offence and therefore are presumed innocent until proven guilty, makes the entire accountability exercise a futile undertaking. Additionally, the need for anyone charged with an offence to be tried in his presence makes Universal Jurisdiction a mere threat without foundation.

PART IV. CIVILIAN POPULATION

Article 18. RELIEF SOCIETIES AND RELIEF ACTIONS

Paragraph 2 of Article 18 states: “If the civilian population is suffering undue hardships owing to a lack of the supplies essential for its survival, such as foodstuffs and medical supplies, relief actions for the civilian population which are of an exclusively humanitarian and impartial nature and are conducted without any adverse distinction shall be undertaken subject to the consent of the High Contracting Party concerned”.

COMMENT. Since per above, the Government of Sri Lanka was not responsible for any relief actions by way of foodstuffs and medical supplies, the charge against the Government of Sri Lanka that it failed to meet its obligations in this regard is baseless and provide grounds for rejection. However, while such responsibilities are with relief societies, the fact is that the government went out of its way to provide relief measure. These actions should be recognized, appreciated and given credit without leveling charges that shortfalls were deliberate. Such perceptions reflect ignorance of international humanitarian law.

CONCLUSION

With the conclusion of hostilities relating to the armed conflict in May 2009, the UNHRC progressively introduced resolution after resolution starting in 2012 until its scope progressively expanded to Resolution 30/1. Over the years individuals have advocated that issues relating to the armed conflict should be addressed in terms of provisions of international humanitarian law but to no avail, due to flawed perspectives of successive governments. However, for the first time the government delegation headed by Foreign Minister Hon. Tilak Marapana has taken a bold and courageous step that hitherto had not been taken by the Foreign Ministry and informed the Human Rights Council “…that all reconciliation mechanisms will be implemented in accordance with our Constitution”. Considering the stands taken by the Foreign Ministry since 2012 until 2015 when it went to the extent of co-sponsoring UNHRC resolution 30/1, the stand taken in 2018 is a paradigm shift that gives Sri Lanka the opportunity to address issues relating to Resolution 30/1 with dignity if it so chooses.

The material presented above if adopted by the government would enable it to address issues relating to Resolution 30/1 in a forthright manner. Since the Foreign Ministry is unlikely to take such an approach judging from its tradition of treading so softly that it stumbles in the process, it has been left to members of civil society to fill the void and bring the facts to the attention of the Human Rights Council.

These facts are:

1. That Resolution 30/1violates several provisions of “non-intervention directly or indirectly in internal affairs” of a sovereign member State as called for in Additional Protocol II relating to issues listed above.

2. The Resolution 30/1’s call for judicial mechanisms to investigate alleged violations of human rights and humanitarian law, contradicts the applicable law which should be as per provisions relating to “Penal Prosecution” stated in Additional Protocol II.

Therefore the appeal to the Human Rights Council and its affiliated bodies is that the materials presented above should be reviewed, and for the resolution to be withdrawn since it is in violation of international customary law.

The material presented above is based on a legal approach to address issues relating to Geneva. Despite such an approach being consistently advocated, Sri Lanka’s approach has been political; an approach that has impacted seriously on Sri Lanka’s sovereignty as demonstrated above. Therefore, emboldened by the stand taken by the Foreign Minister at the conclusion of his 2018 address in Geneva Sri Lanka should address the issues relating to Geneva from a legal perspective and call on the Human Rights Council to withdraw Resolution 30/1and re-visit the stand taken regarding Sri Lanka.